• Tort “reformers” oppose lawsuits except when they file them Friday, October 16, 2009

    By Christine Spagnoli

    People who have been seriously wronged deserve their day in court, even a guy like Fred Hiestand who has spent his career trying to restrict the rights of people like Jim Van Buren.

    Van Buren and Hiestand are very different. Hiestand is a lawyer with a long pedigree at high levels of Sacramento politics. Van Buren is a working man from Merced. They are on opposite sides in the war over the civil justice system, except that Van Buren never wanted any part of this fight.

    Hiestand, on the other hand, is a willing combatant in the decades-long movement to limit civil justice, although as it turns out, he seeks to limit that right primarily for people other than himself. More about that in a minute.

    First, here’s a little about Jim Van Buren. He’s a lot like many folks we consumer attorneys represent. He is a 48-year-old Central Valley man who works as a cable splicer for a phone company and tends to his family. He got an abscess and went to a doctor for what should have been a simple procedure. The scalpel sliced a muscle and now he faces a lifetime of incontinence.

    Consumer attorney David M. Jamieson of Modesto took up Van Buren’s cause, filing a suit that named the surgeon and the clinic where he underwent the outpatient procedure, Yosemite Surgery Associates.

    Given the injury and the aftermath, jurors awarded Van Buren $2.5 million in noneconomic damages. However, Superior Court Judge Ronald Hansen cut the award to $250,000, the maximum permitted under the unfair Medical Injury Compensation Reform Act, signed into law in 1975 by then Gov. Jerry Brown.

    Jamieson filed an appeal on Van Buren’s behalf with the California District Court of Appeal, 5th District. Attorney Robert S. Peck of Washington D.C. entered the case in what was the first step of a renewed campaign by the American Association for Justice and Consumer Attorneys of California to attack MICRA caps in the courts.

    This is where Hiestand and Van Buren became entwined.

    Hiestand signed a 37-page brief urging that the court reject Van Buren’s appeal and affirm MICRA’s caps. The court did so. On Aug. 12, the California Supreme Court upheld the appellate court, and declined Van Buren’s petition for review, effectively ending his case, though not our efforts to attack MICRA.

    Hiestand’s role in the malpractice issue dates to the mid-1970s when he was one of Gov. Brown’s main advisors on the issue.  In the grand tradition of government aides who use taxpayer-funded expertise to make money on the outside, Hiestand has been steeped in the issue ever since, defending MICRA numerous times over the years as counsel to the Civil Justice Assn. of California, and Californians Allied for Patient Protection.

    We know both groups well. CJAC strives to limit access to the courts on behalf of its wealthy patrons–the tobacco industry, the oil industry, insurance companies, pharmaceutical giants, and other corporate interests.

    Californians Allied for Patient Protection’s sole goal is to defend MICRA, largely on behalf of its main benefactor, the insurance industry.

    To that end, the group has raised $1.5 million in recent years. The insurance industry accounted for more than half of that sum, $768,000.

    Hiestand sees the need to limit access to the courts for people like Van Buren, but not for himself. For that, he received some rather unflattering press lately.

    It all began on Aug. 10, 2008, when he parked his Toyota 4Runner in a red zone on 18th and Capital in Sacramento. No matter that there is a parking lot a half block away where he could have paid $5 and parked for two hours. He was in a rush. One of his kids was hungry, he told one of the reporters who quizzed him on the matter, and there are a bunch of eateries on the block—a high end wine bar, a fancy Mexican restaurant, an Asian fusion place and a pizza parlor.

    Hiestand knew he risked a parking ticket. But when he emerged from the restaurant, he found that his SUV had been towed. He had to wait until the following morning to get the 4Runner out of impound and pay $205, plus the $67 parking ticket. Many of us would kicked ourselves for being so stupid to park in a red zone, and sheepishly paid the fines, especially given that there is a paid parking lot around the corner.

    Not Hiestand.

    Hiestand researched at the law, and found what some tort “reformers” might view as a loophole. The law, he concluded, says the city can order a tow only if it posts a sign warning that violators could be towed. Hiestand’s suit was dated Aug. 11, 2009, a day before the Supreme Court  rejected Van Buren’s appeal.

    It wasn’t just any suit. Hiestand filed a class action complaint, the very sort that CJAC has railed against.  Hiestand names the city of Sacramento, Police Chief Rick Braziel, and the cop who wrote him the ticket. For good measure, Hiestand named as a defendant Central Valley Towing, the tow truck company that hauled off his 4Rrunner–no matter that the tow company is a small business that tort reformers are forever claiming to defend.

    As if that weren’t enough, Hiestand sought damages against Central Valley Towing under Business and Professions Code Section 17200, the Unfair Competition Law that the Civil Justice Association of California campaigned against when it pushed Proposition 64, the 2004 initiative to limit such suits.

    Hiestand is not alone.

    Numerous tort “reformers” have become plaintiffs when it suits their interests. Karl Rove has railed against trial lawyers but sued a former business partner. Former Sen. Rick Santorum of Pennsylvania pushed for medical malpractice caps, though his wife filed a malpractice suit against a chiropractor. Maurice (Hank) Greenberg used his foundation to funnel almost $25 million into a U.S. Chamber of Commerce arm that pushes tort reform, and sued his former company, American International Group, for securities fraud earlier this year.

    As Hiestand told the Recorder, “We’ve never said that all class actions are meritless.”

    At root, the tort “reform” movement is classist. Rich and powerful people and corporations simply do not like being held accountable by guys like Jim Van Buren, or questioned by the likes of you and me.

    Eric Foster, owner of Central Valley Towing, summed Hiestand’s lawsuit up well when he spoke to CAOC. “We were called out by the Police Department,” Foster told us. “We were instructed to do this under their direction. Bottom line is this: the man broke the law knowingly and intentionally, and now is trying to profit.”

    Foster said nothing like this has ever happened to him. He would have no choice but to hire an attorney to defend his company. Foster wondered what message Hiestand was sending to his son. That it is OK to flout the law? “I think he should be embarrassed,” Foster said of Hiestand.

    (Spagnoli is president of Consumer Attorneys of California and a partner at the Santa Monica law firm, Greene Broillet & Wheeler. A version of her article appeared in September-October edition of Forum magazine.)